Employee Free Choice Act - Really?

The Employee Free Choice Act – What Is It?

Again this year, the United States Congress is considering legislation to make it easier for union organization. The Employee Free Choice Act, (“EFCA”) amends the National Labor Relations Act “to establish an efficient system to enable employees to form, join, or assist labor organizations, to provide for mandatory injunctions for unfair labor practices during organizing efforts, and for other purposes.”(H.R. 1409) Any small business owner (or manager), regardless of the number of employees, needs to educate themselves on the potential impact of this legislation.

Over the last 50 years the impact of labor unions has been decreasing. In the 1950’s union membership hovered around 35%. That number has decreased to around 7.5% today. The membership decline is attributable, in part, to the number of federal laws that have been passed to protect workers from the abusive practices that once existed in the workplace. There are hundreds of federal and state laws that protect consumers, employees, and part-time workers. In the automobile sector there are no less than eighty-six federal regulations that apply to retail automobile franchises and repair shops.

In an effort to bolster union membership, organized labor is fighting very hard for the EFCA. In a nutshell, the EFCA changes the current law in three ways: (1) Recognition, (2) Negotiations, and (3) Penalties.

Recognition: The current law requires that employees sign union cards indicating their support for an organized union and then petition with the National Labor Relations Board to form a union. Both the employer and the union organizers then campaign for a period of 30 days either for or against the union. After 30 days, the NLRB supervises a secret ballot election and, if the union passes, then the company must recognize the union as the bargaining entity for the employees. The EFCA would essentially cancel the right of companies to campaign against the union. Instead, once the union has 50% of the cards signed, the company would have to recognize the union. No secret ballot. The fear is that employees would be pressured by the union to sign the card and any secret vote against a union would be lost.

Negotiations: Current law allows the parties to bargain for contracts in “good faith” and until a contract is reached the parties continue to work under the status quo. A contract is reached only when both parties agree to the terms. The amendment to the law would change this procedure. Instead, if a contract is not reached in 90 days the contract is sent to mediation (non-binding arm twisting). If after 30 days of mediation a contract is not reached then the matter goes to binding arbitration. The arbitrator will set the terms of the contract which will be in effect for two years. Here, the fear is that the terms may be so onerous that the company would be unable to meet the contract terms without serious alterations to the work environment.

Penalties: Under the new law the penalties are only enhanced for company violations not for union violations. Back pay awards are increased three times and fines could reach up to $20,000 per employer violation. Shouldn’t any change in penalties be reciprocal?
The law can be easily researched on the internet or by going to the Library of Congress’ web site http://thomas.loc.gov/.